Arnold v. Computer Task Group, Inc.

Filing 12

DECISION AND ORDER granting 4 Motion to Dismiss for Failure to State a Claim in its entirety. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/21/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
ELIZABETH ARNOLD,
Plaintiff,

16-CV-864

v.
COMPUTER TASK GROUP, INC.,

DECISION
and ORDER

Defendant.
__________________________________________
INTRODUCTION
Plaintiff Elizabeth Arnold (“plaintiff), proceeding pro se,
brings this action against prospective employer defendant Computer
Task

Group,

Inc.

(“defendant”

or

“CTG”)

alleging

employment

discrimination related to her race, marital status, and gender
under Title VII of the Civil Rights Act of 1964, the Equal
Protection Clause, and the Civil Rights Act of 1991, based on race,
marital status, and gender.
Defendant moves to dismiss plaintiff’s complaint for failure
to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure contending that the plaintiff's allegations fail to
state a claim upon which relief can be granted.

For the reasons

set forth below, defendant’s motion to dismiss the complaint in its
entirety is granted.
BACKGROUND
Unless otherwise noted, the following facts are taken from
plaintiff’s complaint, including the documents incorporated therein
by reference.

Plaintiff, a female resident of East Amherst, New York,
alleges that she was interviewed for the position of “Senior
Informatica Developer” at defendant's “contracted regional office,
Independent Health,” in Buffalo, New York on November 11, 2014.
Complaint ¶¶ 2, 5. The interview was conducted by three employees,
Steve Gardner, Pavitran Perumandia (“Perumandia”), and Sreenivasa
Kambala (“Kambala”). Plaintiff contends that during the interview,
she was: ridiculed by Perumandia and Kambala; asked “bogus and
ambiguous” questions that were unrelated to the subject field and
her technical skills and experience; and asked whether she was
married.

After failing to be hired, plaintiff “learned that she

was rejected from employment based on subjective statements made by
[Perumandia

and

Kambala]

concerning

her

technical

skills

and

availability.” Complaint ¶ 10.

Plaintiff later learned that

information

applicants

technology

(“IT”)

were

interviewed

differently by defendant based on their skin color and that “white
American
skills.

workers”

were

considered

to

have

inferior

technical

The position for which she applied “was filled with” an

individual of “the same national origin of” Perumandia and Kambala.
Complaint ¶ 14.

The specific national origin was not stated in the

complaint.
Plaintiff subsequently fled a charge with the Equal Employment
Opportunity
Corporation

Commission
(“Independent

(“EEOC”)

against

Health”).

Independent

Plaintiff’s

Health

right-to-sue

letter was issued by the EEOC on September 28, 2015, and plaintiff
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commenced a federal action against Independent Health on December
23, 2015 (15-CV-01074-RJA).

Independent Health filed a motion to

dismiss the complaint and submitted a declaration stating that
plaintiff had actually been interviewed for a position at defendant
CTG.

On March 24, 2016, the Court dismissed the action against

Independent Health under Rule 12(b)(1) of the Federal Rules of
Civil Procedure for plaintiff’s failure to sue the proper party,
finding that plaintiff failed to establish that she applied for a
position with Independent Health.

On October 28, 2016, more than

seven motions after the dismissal of her 2015 lawsuit against
Independent Health, plaintiff filed the present action against the
proper party, defendant CTG.
DISCUSSION
To withstand a Rule 12(b)(6) motion to dismiss, the complaint
must plead facts sufficient “to state a claim for relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. Thus, “[w]here a complaint pleads facts that are
merely consistent with a defendant's liability, it stops short of

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the line between possibility and plausibility of entitlement to
relief.” Id. (internal citations and quotation marks omitted).
Determining whether a complaint meets the plausibility standard is
“context-specific”

and

requires

that

the

court

“draw

on

its

judicial experience and common sense.” Id. at 679.
Here, defendant asserts that plaintiff’s action is untimely
because she did not file the present action within 90 days of
receiving her right-to-sue letter from the EEOC.

In order to

pursue a Title VII claim in federal court, a plaintiff, in general,
must

comply

2000e5(f)(1).

with

the

limitations

period

in

42

U.S.C.

§

This section provides that, if a charge filed with

the EEOC is dismissed, the EEOC shall notify the aggrieved person
and, within ninety days after the giving of such notice, a civil
action may be brought against the respondent named in the charge.
See 42 U.S.C. § 2000e–5(f)(1). Section 2000e–5(f)(1) has been held
to mean that the limitations period begins running from the time
that plaintiff receives the right-to-sue letter. See Cornwell v.
Robinson, 23 F.3d 694, 706 (2d Cir.1994) (“[A] suit must be
commenced not more than 90 days after receipt of the right-to-sue
letter.”).

It is well settled that if a plaintiff does not file

suit within 90 days of receiving the EEOC's right-to-sue letter,
the action must be dismissed, unless extraordinary circumstances
have been established.

See Skibinski v. Zevnik, Horton, Guibord,

McGovern, Palmer & Fognani, LLP., 57 F. App'x 900, 901 (2d Cir.

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2003).

“The filing deadline for the formal complaint is not

jurisdictional and, like a statute of limitations, is subject to
equitable

tolling[,

which]

is

only

appropriate

in

rare

and

exceptional circumstances.” Zerilli-Edelglass v. N.Y. City Transit
Auth., 333 F.3d 74, 80 (2d Cir. 2003) (internal quotation marks and
citations omitted).
It is undisputed that plaintiff’s federal action against CTG
was not filed within 90 days of the EEOC’s September 28, 2015
right-to-sue letter concerning plaintiff’s EEOC charge against
Independent Health.

The present action was filed on October 28,

2016, ten months after the 90-day period had expired.
to

defendant’s

untimeliness

argument,

plaintiff

In response

asserts

because she had originally filed her EEOC claim and

that

a timely

federal action against the wrong defendant, equitable tolling is
warranted here.
The Court “retains discretion to consider whether there is an
adequate basis for equitably tolling those requirements. Equitable
tolling is appropriate in circumstances where . . . plaintiff
actively pursued judicial remedies but filed a defective pleading
during the specified time period.” Dupree v. Urban Homesteading
Assistance Bd. Sterling St. Hous. Dev. Fund Corp., 2011 WL 1343163,
at *4 (E.D.N.Y. 2011), citing Zerilli-Edelglass, 333 F.3d at 80.
The record here reveals that plaintiff filed one EEOC charge
against Independent Health, failing to either name CTG as a party

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to the charge or file a new EEOC charge against CTG.

It is clear

that, for a time, plaintiff actively pursued judicial remedies by
filing an EEOC charge and a defective federal pleading against
Independent Health in 2015.
The

question

presented

is

whether

the

additional

period

following the dismissal of the 2015 action constitutes exceptional
circumstances

warranting

equitable

tolling.

The

Court

must

consider whether plaintiff (1) has acted with reasonable diligence
during the time period she seeks to have tolled, and (2) has proved
that the circumstances are so extraordinary that the doctrine
should apply.” Zerilli-Edelglass, 333 F.3d 74, 80-81 (2d Cir.
2003), citing Chapman v. ChoiceCare Long Island Term Disability
Plan, 288 F.3d 506, 512 (2d Cir.2002).
Plaintiff’s response to defendant’s motion to dismiss presents
no facts or circumstances to account for her failure to file suit
against CTG during the seven months following the dismissal of her
2015 action against Independent Health. She also acknowledges that
she received notice that CTG was the proper defendant in February
2016 (15-CV-01074-RJA, Docket No. 2 (Exhibit 4)).

Plaintiff

asserts only that CTG had “reason to believe that there [was] an
incoming claim against them as they stated in the declaration made
by the defendant’s lawyer.” Plaintiff’s memorandum of law, p. 6.
In light of plaintiff’s concession that she was aware of the
existence of a cause of action against CTG and her failure to

Page -6-

demonstrate extraordinary circumstances or reasonable diligence
during the seven-month period prior to the filing of this action,
the Court finds that the doctrine of equitable tolling is not
applicable here.

As such, the Court finds that defendant is

entitled to dismissal of the complaint.
CONCLUSION
For the reasons set forth above, the Court grants defendant’s
motion to dismiss the complaint, in its entirety.

The Clerk of

Court is directed to close the case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
February 21, 2017

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